Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., issued interim directions for proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life of their choice.

Important Issue:

De-stigmatization and acceptance in the eyes of society.

Crux of the Case:

Petitioners, a lesbian couple whose relationship was being opposed by their parents fled to Chennai from Madurai.

Further, the petitioners with the support extended by certain NGOs and persons belonging to LGBTQIA+ Community managed to secure accommodation and protection and were in search of employment. Meanwhile, the respondents i.e. the girl’s parents filed missing complaints. Later, on apprehending threat to their safety, the petitioners approached this Court and sought a direction from the police not to cause harassment and protection from any form of threat or danger.

High Court vide its Order dated 28-04-2021, had requested for the counselling of the parents and a report to be submitted before the Court. In the decision, Court had also expressed that:

I want to give myself some more time to churn. Ultimately, in this case, the words must come from my heart and not from my head, and the same will not be possible if I am not fully “woke” on this aspect. For this purpose, I want to subject myself for psycho-education with Ms.Vidya Dinakaran and I would request the psychologist to fix a convenient appointment for the same. I honestly feel that such a session with a professional will help me understand same-sex relationships better and will pave way for my evolution. If I write an order after undergoing psycho-education, I trust that the words will fall from my heart.

Counselling Psychologist submitted its report in the Court, which revealed that there was no substantial or marked change noticed in the attitude of the parents during the second counselling session. At the best, one of the parents had the heart to let their daughter alone to live their life even though they were not able to accept their same-sex relationship with the other Petitioner. Even though the counselling of the parents did not ultimately end up with the desired result, this Court atleast has the satisfaction of making all efforts to assuage their feelings, and to ensure that they were not left in the lurch in this journey.

Bench itself went under a counselling session and gained a great amount of insight and understanding and felt that further interaction with person(s) who belong to the LGBTQIA+ community would be greatly instrumental to help myself understand the ground realities, emotions, social discrimination and exclusion and several other difficulties faced by the community.

Bench also interacted with a transwoman who had successfully broken the shackles laid by the society on the LGBTQIA+ community.

The above session ultimately convinced the Bench that it must change all the preconceived notions and start looking at persons belonging to the LGBTQIA+ community as they are.

I must frankly confess that the Petitioners, Ms. Vidya Dinakaran and Dr. Trinetra became my gurus who helped me in this process of evolution and pulled me out of darkness (ignorance).

Understanding the concept of LGBTQIA+ Community

Unlike regular litigations, the present case has given this Court, not only an opportunity but also a vested responsibility to weigh the cause for inclusivity and justice against discrimination by heretofore social understanding of morality and notions of tradition. That being said, I also felt that I remove the “Lordship’s” hat and instead wear the hat of the average commoner in the society, who have not given thought to understand or accept, who are attempting to understand, who totally refuse to understand or accept the LGBTQIA+ community. I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely. Ignorance is no justification for normalizing any form of discrimination.

Society and my upbringing have always treated the terms “homosexual”, “gay”, “lesbian” as anathema. A majority of the society would stand in the same position of ignorance and preconceived notions.

Court added that the only reason for referring the petitioners to counselling was to enable the Bench to understand something more about the said relationship from a professional.

In order to appreciate the controversy raised in the present case, Bench briefly traced the development of Article 15 of the Constitution and to notice the developments across the globe on the interpretation of similar non-discriminatory provisions.

High Court issued the following interim guidelines/directions:

A. The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.

B. Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within 8 weeks from the date of receipt of copy of this order.

C. Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights.

D. NGO concerned shall maintain confidential records of such persons who approach the enlisted NGOs and the aggregate data shall be provided to the Ministry concerned bi-annually.

E. Such problems shall be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority, or to co-ordinate with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.

F. With specificity of issue of accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters, and “garima greh” (a shelter home for transgender persons, the purpose of which is to provide shelter to transgender persons, with basic amenities like shelter, food, medical care and recreational facilities. Besides, it will provide support for capacity- building/skill development of persons in the community, which will enable them to lead a life of dignity and respect) to accommodate any and every member of the LGBTQIA+ community, who require shelters and/or homes. The MSJE shall make adequate infrastructural arrangements in this regard, within a period of 12 weeks.

G. Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream shall also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavour to device such measures and policies.

H. For the sake of creating awareness, the Court suggested certain sensitisation programs to be conducted by the Ministry concerned of the Union/State Government(s).

Matter to be posted on 31-08-2021 for passing further orders. [S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096, decided on 7-06-2021]

Advocates before the Court:

For Petitioner : Mr. S. Manuraj

For Respondents 1, 2, 5 & 6 : Mr. Hasan Mohammed Jinnah State Public Prosecutor

For Respondent No. 3 : Mr. Mithelesh

For Respondent No. 4 : Mr. P. Thilak Kumar

For Respondent Nos. 7, 8, 9, 17 & 18 : Mr. Shanmugasundaram Advocate General Assisted by Ms. Shabnam Banu Government Counsel

For Respondent Nos. 10 to 16, 19, 20, 21, 22 & 23 : Mr. Shankaranayanan Additional Solicitor General Assisted by Mr. V. Chandrasekar Central Government Standing Counsel

Op EdsOP. ED.

April 24, 2021, will be known for two benchmark events in the legal field. First is, India will be getting its 48th Chief Justice of India, in the form of Justice N.V. Ramana, who takes over reins of the highest court from outgoing Chief Justice S.A. Bobde. And the second is, on this day, 48 years ago, the largest Bench till date (13-Judge Bench) of the Supreme Court of India in Kesavananda Bharati v. State of Kerala,[1] had laid down the basic structure doctrine, whereafter, any amendment made to the Constitution can be struck down by the court on violation of basic structure of the Constitution of India.

“Basic structure is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power.”[2]

The “basic features”, which were declared to be part of “basic structure”, inter alia, are— (1) Supremacy of the Constitution; (2) sovereignty; (3) republican and democratic form of Government;[3] (3) federalism;[4] (4) secularism;[5] (5) separation of powers;[6] (6) independence of judiciary;[7] and (7) judicial review,[8] etc. The above conspectus is an illustrative list, because “for determining whether a particular feature of the Constitution is part of the basic structure or not, it has to be examined in each individual case keeping in mind the scheme of the Constitution”. [9]

So, a Constitutional Amendment or any Act/Regulation which is inserted into the 9th Schedule of the Constitution[10] after 24-4-1973[11] can be impugned as violative of basic structure of the Constitution. Now, the question that emanates is, can an “ordinary legislation” be impugned as violative of basic structure of the Constitution? This article discusses that, with assistance of judicial dictums.

Ordinary legislation means an Act enacted by either Parliament or the State Legislatures on the matters respectively enumerated under 7th Schedule of the Constitution[12]. Our Constitution’s aim is clear in demarcating the functions of the institutions. As per Article 245(1)[13], Parliament or State Legislatures make the laws, whereas, as per Article 141[14], the Supreme Court declares the law to be either constitutional or unconstitutional.

For declaring an ordinary law as constitutional or unconstitutional, its constitutional validity is generally tested on two grounds,[15]— (1) Legislative competence; (2) violation of fundamental rights or any other constitutional provisions. The other grounds that were considered are— (3) law should not be prohibited by any particular provision of the Constitution,[16] (4) law should follow the procedure laid down in the Constitution;[17] and (5) vagueness in law.[18]

Before applying the above tests, the court starts with a presumption that a law is constitutionally valid.[19]

Coming to assessment of the application of basic structure doctrine to an ordinary legislation, in Kuldip Nayar v. Union of India,[20] Ashoka Kumar Thakur v. Union of India,[21] and Union of India v. Madras Bar Assn.,[22] it was categorically held that “only constitutional amendments can be subjected to the test of the basic features doctrine. Legislative measures are not subject to basic features or basic structure or basic framework”.[23]

Whereas, in Madras Bar Assn. v. Union of India,[24] and Supreme Court Advocates-on-Record Assn. v. Union of India,[25] it was held that “if a challenge is raised to an ordinary legislation based on one of the ‘basic features’ of the Constitution, it would be valid to do so”.[26]

The dictum that even an ordinary legislation can be assailed as violative of “basic structure” of the Constitution is untenable, because, firstly, a constitutional amendment, made by virtue of Article 368[27], is an “amending power”, whereas, ordinary law, made by virtue of Articles 245 to 248[28] on entries in the 7th Schedule, deals with a “legislative power”. Secondly, the “basic structure” theory was evolved in Kesavananda Bharati case,[29] because a frontal attack on a constitutional amendment cannot be made on ground of violation of Part III per se, as the expression “law” under Article 13(3)[30] does not covers a constitutional amendment. The point that the expression “law” under Article 13(3) does not covers amendments under Article 368 was held by 8 Judges (Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew, Beg, Dwivedi, Chandrachud, JJ.) out of 13 Judges in the Kesavananda Bharati case[31] by overruling C. Golak Nath v. State of Punjab[32] on this aspect. Therefore, the Judges in Kesavananda Bharati case[33] weaved the fundamental rights into the basic structure doctrine so that rights of citizenry can be protected against the mighty State, whereas an ordinary legislation can be directly challenged as violative of Part III as it comes under the expression “law”, as defined under Article 13(3). Thirdly, in Indira Nehru Gandhi v. Raj Narain[34] (famously called as “Election case”), about which noted jurist H.M. Seervai in his magnum opus — Constitutional Law of India (4th edn. at para 30.19) — says that “no one can now write on the amending power, without taking into account the effect of Election case[35]”, 3 Judges (Ray, C.J., Mathew, Chandrachud, JJ.) out of 5 Judges gave a detailed reasoning on why basic structure test cannot be used as a yardstick to test ordinary legislation. Chief Justice A.N. Ray (as His Lordships was then) observed that “if the theory of basic structures or basic features will be applied to legislative measures it will denude Parliament and State Legislatures of the power of legislation and deprive them of laying down legislative policies. This will be encroachment on the separation of powers”.[36] Justice K.K. Mathew (as His Lordships was then) gave a more picturesque reasoning. His Lordships observed that “I do not think that an ordinary law can be declared invalid for the reason that it goes against the vague concepts of democracy, justice, political, economic and social, liberty of thought, belief and expression; or equality of status and opportunity, or some invisible radiation from them.”[37] Justice Y.V. Chandrachud (as His Lordships was then) reasoned out by observing that “certain constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the legislatures of not less than one-half of the States as provided by Article 368(2). An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations”.[38]

In view of the above, it is expected that future Benches of the Supreme Court will follow the law as laid down in Indira Nehru Gandhi v. Raj Narain[39] and eschew the observations made in Madras Bar Assn. v. Union of India,[40] and Supreme Court Advocates-on-Record Assn. v. Union of India,[41] as per incuriam, so that the basic structure doctrine, which was evolved thanks to the painstaking efforts of Nani A. Palkhivala, does not gets too much stretched that it loses its elasticness.

Law student, University College of Law, Osmania University, e-mail:

[1] (1973) 4 SCC 225 

[2] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 at para 691

[3] State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501

[4] S.R. Bommai v. Union of India, (1994) 3 SCC 1

[5] S.R. Bommai v. Union of India, (1994) 3 SCC 1

[6] State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571

[7] Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1

[8] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261

[9] Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 at para 116

[10] <>.

[11] I.R. Coelho v. State of T.N., (2007) 2 SCC 1

[12]  <>.

[13] <>.

[14] <>.

[15] State of A.P. v. McDowell & Co., (1996) 3 SCC 709 at para 43; Public Services Tribunal Bar Assn. v. State of U.P., (2003) 4 SCC 104 at para 26

[16] Chhotabhai Jethabhai Patel and Co. v. Union of India, AIR 1962 SC 1006: 1962 Supp (2) SCR 1  at para 33

[17] Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 

[18] Shreya Singhal v. Union of India, (2015) 5 SCC 1

[19] Charanjit Lal Chowdhuri v. Union of India, AIR 1951 SC 41: 1950 SCR 869 at para 10. See also Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 538: 1959 SCR 279 at para 11 and R.K. Garg v. Union of India, (1981) 4 SCC 675 at para 7

[20] (2006) 7 SCC 1

[21] (2008) 6 SCC 1

[22] (2010) 11 SCC 1

[23] Ibid. at para 99.

[24] (2014) 10 SCC 1. In this case of 5-Judge Bench, Justice J.S. Khehar, who authored the leading judgment, held this view (see at para 109), while Justice Rohinton F. Nariman did not express any opinion on this point.

[25] (2016) 5 SCC 1. It is to be noted that in this case of 5-Judge Bench, only Justice J.S. Khehar held this view (see at para 381), while Justice Madan B. Lokur disagreed with this view (see at para 857). And Justice Kurian Joseph and Justice J. Chelameswar did not express any opinion on this point.

[26] Ibid. at para 381.

[27] <>.

[28] <>.

[29] (1973) 4 SCC 225

[30] <>.

[31] (1973) 4 SCC 225

[32] (1967) 2 SCR 762

[33] (1973) 4 SCC 225

[34] 1975 Supp SCC 1

[35] 1975 Supp SCC 1

[36] Ibid. at para 136.

[37] Ibid. at para 346.

[38] Ibid. at para 692.

[39] 1975 Supp SCC 1 

[40] (2014) 10 SCC 1

[41] (2016) 5 SCC 1. Only observations of Justice J.S. Khehar.


Nitin Sarin specialises in asset / aircraft, finance / leasing / repossession & is a qualified lawyer (in both India & England and Wales) and also the Managing Partner of Sarin and Co.; Nitin completed his B.A.; LL.B from the Army Institute of Law, Mohali . He has also completed his Advanced LL.M. in Air and Space Law from Leiden University, Leiden, the Netherlands. 

He has been interviewed by EBC/SCC Online Student Ambassador, Nritika Sangwan who is currently pursuing law from AIL, Mohali.


1. Where did this love for planes begin and what is it that you find most fascinating about them?

It does surprisingly have a link with law. My father was always a busy lawyer and we spent most of our childhood seeing him always in office – weekends or weekdays. The only escape he had was to leave the country else clients would find some way or the other to reach him. At that point domestic travel did not have many options so every June we would be flying out somewhere overseas and that is where the passion really stems from. It used to be the most exciting part of the year – the smell, the feel and the “abroad” factor. The places we visited may not seem very exotic now as we as a nation are travelling so much more than in the early 1990s, but at that time my parents had to work very hard to take their three children on these international holidays. That is how I became fascinated with planes and even now I am constantly fascinated by the ability that we can fly, it is unlike any other mode of transportation we have.

2. Give us a snapshot of your journey from being a student at Army Institute of Law, Mohali (AIL) to being ranked highly in the Legal 500 lawyers and law firm list in the aviation category.

I do not feel I deserve any of it because my journey has just begun. As a student, I was not a very interested student – I never enjoyed studying or participating in moot courts even though ironically, we run one now. I was more focused on my own life and did not really want to conform to the norm, I barely scraped through. I graduated in 2008 and immediately went to Netherlands for my masters where we ended up being a class of only 3 as the economic downturn had just started. I developed close relationships with my professors and got individual attention at that point.

Overseas education that one receives is very different from what one receives here in India. I specialised in Aircraft Finance which was a very small part of the curriculum. After my masters, I came back and practised in the Punjab and Haryana High Court. I had an understanding with my father that if I got any aviation work that would take priority over court work.

My first break was when Kingfisher Airlines went bankrupt, and I advised an American aircraft leasing company on how to take their planes back – that is when I really learnt on the job. I put in all my time to get this right.  Eventually, the balance tipped in my favour and I began to get more aviation work. I went out there and “marketed” myself by introducing myself, sending out emails, attending conferences and so on. It was primarily luck as at times, I was found through a Google search.  The rest is all totally up to you to utilise an opportunity. Now we are in a situation where large companies having trillion-dollar market caps are engaging us specifically for their aviation work in India. That is how we have carved out a niche for ourselves.

3. Do you believe that mooting as an activity is essential for a law student?

Definitely very important from the point of view that the student can gauge whether they enjoy litigation or not. That is the starting point to see whether you enjoy arguing in court or prefer being the brains behind the magic by carrying out the backend research. It sort of enables you to decide that for yourself.

4. The Sarin-McGill Annual Student Essay Contest on Aircraft Finance and Leasing was launched in 2020. Do you believe that academic writing is important for law students even if they do not want to pursue a career in academia?

The aim of these competitions is not really academic but rather to encourage students to do the research and learn about what the subject is. I can read those articles and gauge who has understood the law and who has not. Talking specifically on aircraft finance, it is such a niche subject that we need more discussions and research to take place, the essay contest is aimed to encourage just that.

5. Air law is a niche practice area and students do not get easy opportunities to explore the field, what are the avenues available for students to explore this field and figure out if they are interested in the aviation law or not?

There are essentially three aspects to aviation law – you have the financial side of it i.e. leasing and financing aircraft; you have the regulatory side of it where you are dealing with bilateral rights with countries and regulators; and the third one is where you are dealing with passenger rights and claims. For students of law, getting that exposure is difficult because most firms say they do aviation work but it only goes so far. The kind of work you get will depend on which aspect you choose. For exposure, airlines are a good option to intern and gain such experience. Law firms may not be able to give a holistic approach because not everyone has the bandwidth and workstream to provide that kind of training.

6. Do you place importance on a masters /LLM degree?

I think so, and I am talking specifically about an LLM overseas. I think they are very important for a number of reasons; you learn how other systems work which is very important and those systems are different from ours. They promote a more open book culture which is opposite to the rote learning culture we follow here (at least till when I was a student, hopefully that is changing). If a student has a particular interest, I believe they must go and do a masters in that. It is simply the next step – you know like a teenager growing up and becoming an adult.

7. Are there any courses or colleges in India that impart the same quality of education as any college overseas?

I have not had any first-hand experience but I think some of the newer institutions that have international teachers coming to teach are giving that kind of experience. I do foresee a changing atmosphere in the sense that we will find more international universities partnering with local universities in India to give students that kind of exposure. By no means am I implying that our educational institutions are by any means any less competent, its small things like style of teaching, openness with your teachers and equality between student and teacher which make a difference.

8. What are the job opportunities for someone choosing the aviation field?

It really depends on which part of aviation you want to be in. If the student is interested in the finance part of it – they are a better off doing a finance LLM and qualifying somewhere overseas where they can work with a law firm which specialises in general financing of assets because aviation will usually always come under that. There are huge prospects even in India because there are very few law firms that manage all the work. They are short on staff so yes, the scope is large. Opportunities are great – we are going to be the largest aviation industry in the world in the next couple of years and the amount of work at the end of the tunnel is massive.

9. What do you look for in students and professionals while hiring them at Sarin & Co.?

It is very old school but I look for individuals who are interested in the work and are doing it because they want to do it. Dedication and hard work are what I look for. All this may sound cliché but it is difficult to find people like that. We try to look for people who will happily give up a weekend to work (we respect our teams off time, but I learned early on that “assuming” that you get a weekend off is really living in a fool’s paradise). Also, I look for persons wanting to grab work, an associate sitting around waiting for work to be assigned to him or her is just not what we are looking for. We have the work, come, and take it and do your best.

10. Do you think India has enough regulations to tackle the massive environmental impact of the aviation industry or do you see some change happening?

I see changes coming in very rapidly the world over. The thing with aviation is that, firstly, airlines want machines that burn the least amount of fuel so automatically the industry is pushing itself towards becoming a greener industry. Airbus, Boeing, Embraer and other manufacturers thus have an incentive to make aircraft as efficient as possible. Secondly, it cannot  be that one jurisdiction has more stringent laws than the other, it has to be a global change since the distribution of asset is also such – the aircraft are going to travel across jurisdictions, so the laws need to be aligned. Yes, aviation will be one of the industries to step up to the mark whether it is the use of bio-fuel or other things.

11. What is your opinion on carbon offsetting? Do you think it is a legit solution or do you think there is a better alternative to it?

As long as the money is going towards properly offsetting the pollution, that is justified. But in our country, is it really going there? We have to be very conscious of our carbon footprint. We are going through the so-called industrial revolution wherein people are making so much money but are blinded by the environmental damage being caused. We will regret this in the future and think of how much better we could have done. The EU went through that cycle where they started off with their clean and green phases, went through their industrial revolution, polluted everything and eventually realised the gravity of their pollution. While their realisation finally arrived, they have used the last many decades to clean up while we in India have not reached that stage yet where we realise the impact that our plundering the environment is going to have on us.

12. How has Covid impacted aviation lawyers?

It depends on who you work for. If you work for airlines then you are one of the directly affected parties. However, we at the firm have been busier than before. There are so many matters due to the current situation – a lot of default has been happening. Almost all airlines in the world have defaulted in their obligations and in some cases renegotiation of aircraft lease agreements has been going on as a consequence thereof. We have seen a lot of negotiations happening to take aircraft back and prevent bankruptcy. We are also seeing a lot of people and corporate houses investing huge amounts of money in private jets which is very interesting.

13. What does a typical work day for an aviation lawyer look like?

The first four hours of the day are important. I get to work by about 7 a.m. and I work till 11 a.m. and I am done with 90% of my work. The kind of clients you have also guides your daily schedule. If you have international clients, you function according to their timings and so you make time for your other activities accordingly. There is no structure as such, you just go with the flow. You work whenever the work comes. Every day can look different. Some days I have several hours to myself and some days are so busy I have no time.

14. What is the most challenging part of your job?

To keep my clients, both new and old happy, consistently. Especially clients who have been with us for a while. The longer our association becomes, the more challenging it gets, in my opinion, to ensure we continue to be their go-to law firm in India. That is what keeps you going and that is what keeps you on top of the game.

15. If not a lawyer, what would you have done?

Sometimes I actually wonder what I am doing here. If not a lawyer, I would definitely have loved to cook or have a piece land and done something there. I realised very early in my career that work should only be a tool to do what you want to do and life should be enjoyed because you never know when it will end.

NewsTreaties/Conventions/International Agreements

The Union Cabinet has given its ex-post facto approval for signing of the MoU (Memorandum of Understanding) for cooperation in the legal field between India and Morocco, in order to share their experience and expertise in the field of law and legislation. The MoU will give an opportunity to the lawyers, law officers and law students to discuss issues in the field of law and justice in seminars, symposiums and workshops arranged by authorities of India and Morocco.

Ministry of Law and Justice